The biggest problem with the criminal justice reform bill

In this Oct. 23, 2018 file photo, a guard opens a gate at the deactivated House of Correction in Philadelphia, which has used grants to reduce its jail population by about 36 percent. Matt RourkeThe Associated Press

In this Oct. 23, 2018 file photo, a guard opens a gate at the deactivated House of Correction in Philadelphia, which has used grants to reduce its jail population by about 36 percent. Matt RourkeThe Associated Press

I once found myself locked in a holding cell in a Hawaii courthouse. A grim combination toilet and sink stood in one corner, and there were a couple of benches along the walls. Other than that, nothing — not even toilet paper, which had to be requested, a few sheets at a time, from the deputies. It was very dark, small and unutterably bleak, in a way impossible to convey without locking you inside.

I spent about a year in that cell, by which I mean five to 10 minutes. I was not awaiting a court appearance. I was reporting on an innovative probation program that was successfully diverting large numbers of people from prison. One of the deputies offered to let me see a cell from the inside.

I later sat in a nearby courtroom and watched a man argue with the judge. The man had repeatedly violated his probation, and the judge was explaining that he had a choice: Go to a long-term residential rehab program, or go to prison for many years. This seemed no choice at all — and yet, to my astonishment, the man was yelling that he didn’t need rehab and wasn’t going to go. Wearily, the judge sentenced him to prison and turned to his next case.

For years afterward, I turned that scene over in my mind, trying to understand what kind of person chooses a cell over a hospital bed. And I have been doing so again since Dec. 18, when Congress passed a landmark criminal justice reform bill, the First Step Act.

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The bill, which will decrease sentences in the federal prison system, had a broad range of support across the political spectrum. But it also had vehement opponents, including Sen. Tom Cotton, who wrote last month, “If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released.”

I suspect that the senator was thinking of men such as the one I saw in that courtroom, the ones we used to quaintly call the “incorrigibles.” They are the subjects of all the worries that surface whenever someone proposes reducing incarceration: how many there are, and what they will do if we release them.

Those worries aren’t baseless. Criminal justice reform means taking chances on people who haven’t proved themselves very trustworthy. Many will violate that trust.

But we have to balance the cost of keeping someone in a cage — not just the tens of thousands of dollars spent per prisoner per year, the shattered families and communities and the suffering of the prisoners — with the cost to society of making prison routine, which is that prison becomes less effective as a deterrent.

During the Great Depression, George Orwell observed that mass unemployment makes it impossible to maintain the norm that people should work. A community can’t stigmatize a condition that afflicts a clear majority of its members. A similar logic applies to mass incarceration: If a substantial fraction of your neighborhood’s population has done jail time, it will seem both less scary and less shameful.

As with the community, so with the individual. It’s a horrifying prospect to be locked away from every pleasant or decent thing. But it’s probably most horrifying before you’ve spent years in that condition, networking with other criminals and learning the ropes. That may be one reason that mounting evidence shows harsh sentences make people more likely to commit future crimes.

So you can think, as I do, that most people in prison probably deserve to be there, while still thinking, as I do, that we should find some way to keep most of them out. The biggest problem with the First Step Act isn’t that it lets too many people out of prison, but that it still lets too many go in. Prison needs to be a desperate last resort, not the first.

Which brings me back to Hawaii, because years later, I finally did understand what I’d seen there. I figured it out while lunching with residents of a Utah halfway house, all of whom had done serious prison time. As we ate, I related my story, my continuing bewilderment.

“I would have done anything” not to be in that cell, I said.

One of my lunch companions smiled tolerantly.

“The first night you spend in prison is the worst night of your life,” he explained. “But the second night … that’s just your life.”